Mark Walsh is a contributing writer to Education Week. He has covered legal issues in education for more than two decades. He writes about school-related cases in the U.S. Supreme Court and in lower courts.

School Not Liable in Girl's Sex Assault, Full Appeals Court Rules

A Mississippi school district is not liable in a federal civil rights suit for failing to protect a 4th grade student from sexual assault by a man who checked the girl out of school without authorization, a full federal appeals court has ruled.

The 16-2 decision by the full U.S. Court of Appeals for the 5th Circuit, in New Orleans, holds that the student did not have a special custodial relationship with her school, and thus the school had no constitutional duty to protect her from harm inflicted by a private "actor." The court also rejected two other theories for holding the school liable.

"While we should have every reason to expect that public schools can and will provide for the safety of public school students, no matter their age, our precedents, and the decisions of every other circuit to have considered this issue, dictate that schools are simply not constitutionally required to ensure students' safety from private actors," said the majority opinion by Carolyn Dineen King on March 23 in Doe v. Covington County School District..

A three-judge panel of the 5th Circuit had ruled 2-1 last August that the school district may be liable in the case. The full appeals court tossed out that ruling in September and said it would look at the case "en banc."

The two judges who voted for liability in the panel decision were the dissenters from the full court's contrary opinion.

"We [do not] adequately discharge our duty by interpreting the special relationship doctrine so narrowly that a helpless 9-year-old girl, abruptly removed from her classroom by school personnel and wrongly delivered to an unauthorized grown man, falls through the mesh of the Constitution's safety net," said Judge Jacque L. Weiner Jr., in a dissent joined by Judge James L. Dennis..

The lawsuit filed on behalf of a student identified as Jane Doe alleges that on six occasions during the 2007-08 school year, Covington Elementary School released the 9-year-old girl to a man who took her from the school and sexually assaulted her.

The district had a compulsory check-out policy, with parents filling out a form listing adults authorized to check out their children. The man was not authorized to check out Jane Doe but would claim to be her father and even once signed the girl out as her mother, court papers say.

The man was convicted of sexual battery in the assaults and is serving a 10-year prison term, according to press reports at the time of the panel decision.

The suit alleged that the district violated the girl's 14th Amendment substantive due process rights by being deliberately indifferent to her safety.

While a federal district court dismissed the suit, the 5th Circuit panel ruled last August that the school did have a special relationship with the girl, resulting in a duty to protect her from harm.

The panel cited language from the U.S. Supreme Court's 1989 decision in DeShaney v. Winnebago County Department of Social Services. In that case, the high court held that there was no special relationship between government social workers and a child who was severely beaten by his father after the social workers had investigated reports of abuse and declined to remove the child from his home.

The high court went on in DeShaney to say that the government agency could have had a duty to protect the child from private violence if it had taken an affirmatively active role in the child's care.

The full 5th Circuit majoriity, rejecting the panel's conclusions, said it has been binding precedent in that circuit for decades that a public school does not have a DeShaney special relationship with its students requiring the school to ensure the students' safety from private actors.

"Without a special relationship, a public school has no constitutional duty to ensure that its students are safe from private violence," Judge King said in the majority opinion.

The full 5th Circuit court also rejected district liability under so-called state-created danger and municipal liability theories.

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